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Difference between revisions of "Parenting Orders, Guardianship, and Contact (3:XI)"
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Parenting Orders, Guardianship, and Contact (3:XI) (view source)
Revision as of 04:40, 24 July 2016
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== D. Custody == | == D. Custody == | ||
Proceedings regarding parenting arrangements or contact that have been started, but not determined, before the ''Family Law Act'' is in force, do not need special transition sections. Section 4 of the ''Interpretation Act'' provides a default rule that the Act will be used upon it becoming effective, so cases started under the '' | Proceedings regarding parenting arrangements or contact that have been started, but not determined, before the ''Family Law Act'' is in force, do not need special transition sections. Section 4 of the [http://canlii.ca/t/844q ''Interpretation Act''] provides a default rule that the Act will be used upon it becoming effective, so cases started under the ''FRA'' will be determined under the ''FLA''. | ||
In the absence of a court order or a written agreement, custody of a child remains with the person with whom the child usually resides. One must bear in mind that the Act does not touch on day-to-day life until it is invoked, usually by filing a lawsuit or by making an application. | In the absence of a court order or a written agreement, custody of a child remains with the person with whom the child usually resides. One must bear in mind that the Act does not touch on day-to-day life until it is invoked, usually by filing a lawsuit or by making an application. | ||
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It is important to note that these factors should not be viewed like a checklist or a firm “rubric” with solid weights for each point. Rather, the discretionary, contextual, and complex nature of custody cases makes it more appropriate for the factors to be viewed holistically. Similarly, these factors do not necessarily form an exhaustive list of the factors to be considered. The best interests argument is often expansive, considering a range of factors illuminated at both the statutory and common-law level. | It is important to note that these factors should not be viewed like a checklist or a firm “rubric” with solid weights for each point. Rather, the discretionary, contextual, and complex nature of custody cases makes it more appropriate for the factors to be viewed holistically. Similarly, these factors do not necessarily form an exhaustive list of the factors to be considered. The best interests argument is often expansive, considering a range of factors illuminated at both the statutory and common-law level. | ||
The Court will generally consider the child’s health and emotional well-being, his or her education and training and the love, affection and similar ties that exist between the child and other persons such as relatives and family friends. If appropriate, the views of the child will be considered. For a custody order relating to a teenager to be practical, it must reasonably conform to the wishes of the child (''O’Connell v McIndoe'' (1998), 42 R.F.L. (4th) 77 (BCCA), ''Alexander v Alexander'' (1988), 15 R.F.L. (3d) 363 (BCCA)). | The Court will generally consider the child’s health and emotional well-being, his or her education and training and the love, affection and similar ties that exist between the child and other persons such as relatives and family friends. If appropriate, the views of the child will be considered. For a custody order relating to a teenager to be practical, it must reasonably conform to the wishes of the child ([http://canlii.ca/t/1dxml ''O’Connell v McIndoe'' (1998), 42 R.F.L. (4th) 77 (BCCA)], [http://canlii.ca/t/23fnw ''Alexander v Alexander'' (1988), 15 R.F.L. (3d) 363 (BCCA)]). | ||
Other factors have emerged through the common law, including a preference that siblings remain together and a willingness to look into the character, personality and moral fitness of each parent. However, there is no presumption against the separation of siblings (''P (AH) v P (AC)'', 1999 BCCA 203). The welfare of the child is not determined solely on the basis of material advantages or physical comfort, but also considers psychological, spiritual, and emotional factors (''King v Low'',(1985), 44 R.F.L. (2d) 113 (SCC)). The Court will take into account the personality, character, stability, and conduct of a parent, if appropriate (''Bell v Kirk'' (1986), 3 R.F.L. (3d) 377 (BCCA)). | Other factors have emerged through the common law, including a preference that siblings remain together and a willingness to look into the character, personality and moral fitness of each parent. However, there is no presumption against the separation of siblings ([http://canlii.ca/t/546m ''P (AH) v P (AC)'', 1999 BCCA 203]). The welfare of the child is not determined solely on the basis of material advantages or physical comfort, but also considers psychological, spiritual, and emotional factors ([http://canlii.ca/t/1fv1n ''King v Low'',(1985), 44 R.F.L. (2d) 113 (SCC)]). The Court will take into account the personality, character, stability, and conduct of a parent, if appropriate ([http://canlii.ca/t/23fhc ''Bell v Kirk'' (1986), 3 R.F.L. (3d) 377 (BCCA)]). | ||
Agreements between parties regarding custody do not oust the Court’s jurisdiction. An agreement is important, but only one of several factors to be taken into consideration when determining the best interests of the child. The degree of bonding between child and parent is also taken into consideration. The biological link does not outweigh other considerations, but when all other factors are equal, the custody of the child is best served with the biological parents (''L (A) v K (D)'',2000 BCCA 455; ''H (CR) v H. (BA)'', 2005 BCCA 277). | Agreements between parties regarding custody do not oust the Court’s jurisdiction. An agreement is important, but only one of several factors to be taken into consideration when determining the best interests of the child. The degree of bonding between child and parent is also taken into consideration. The biological link does not outweigh other considerations, but when all other factors are equal, the custody of the child is best served with the biological parents ([http://canlii.ca/t/1fnkk ''L (A) v K (D)'',2000 BCCA 455]; [http://canlii.ca/t/1kvhg ''H (CR) v H. (BA)'', 2005 BCCA 277]). | ||
Race and aboriginal heritage are relevant considerations, but neither is determinative of custody alone. The importance of race differs in adoption cases, where it may be given more weight because the Court is making a decision about the child’s exposure to his or her race or culture (''Van de Perre v Edwards'', 2001 SCC 60). Aboriginal heritage is to be weighed along with other factors in a determination of a child’s best interests (''H (D) v M (H)'', [1997] BCJ No 2144 (QL) (SC)). | Race and aboriginal heritage are relevant considerations, but neither is determinative of custody alone. The importance of race differs in adoption cases, where it may be given more weight because the Court is making a decision about the child’s exposure to his or her race or culture ([http://canlii.ca/t/51z8 ''Van de Perre v Edwards'', 2001 SCC 60]). Aboriginal heritage is to be weighed along with other factors in a determination of a child’s best interests ([http://canlii.ca/t/1f50z ''H (D) v M (H)'', [1997<nowiki>]</nowiki> BCJ No 2144 (QL) (SC)]). | ||
Clients may wish to vary a custody order. The threshold for a variation of a custody or access order is a material change in the circumstances affecting the child. There is no legal presumption in favour of the custodial parent, although that parent’s views are entitled to respect. The focus is on the best interests of the child, not the interests and rights of the parents (''Gordon v Goertz'', | Clients may wish to vary a custody order. The threshold for a variation of a custody or access order is a material change in the circumstances affecting the child. There is no legal presumption in favour of the custodial parent, although that parent’s views are entitled to respect. The focus is on the best interests of the child, not the interests and rights of the parents ([http://canlii.ca/t/1fr99 ''Gordon v Goertz'', [1996<nowiki>]</nowiki> 2 SCR 27]). | ||
Section 211 of the ''FLA'' allows the Court to order an assessment by a psychologist of each party’s parenting abilities and relationship with the child. These reports are particularly important where the dispute over custody is bitter and unlikely to settle. An assessment provides the Court with an independent and neutral expert opinion. Where expert evidence would assist the Court, the Court can order an ''FLA'' Section 211 report (''Gupta v Gupta'', 2001 BCSC 649). | Section 211 of the ''FLA'' allows the Court to order an assessment by a psychologist of each party’s parenting abilities and relationship with the child. These reports are particularly important where the dispute over custody is bitter and unlikely to settle. An assessment provides the Court with an independent and neutral expert opinion. Where expert evidence would assist the Court, the Court can order an ''FLA'' Section 211 report ([http://canlii.ca/t/4xfd ''Gupta v Gupta'', 2001 BCSC 649]). | ||
=== 2. Types of Custody Orders === | === 2. Types of Custody Orders === | ||
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==== d) Shared Custody ==== | ==== d) Shared Custody ==== | ||
“Shared custody” is a term used by the Federal Child Support Guidelines, but not by either the ''DA'' or the ''FLA''. Shared custody is a form of joint custody in which the child spends an almost equal time with each parent. Typically, the child would switching homes on a frequent basis, such as every few days or once a week. This usually requires that the parents live near one another and have good communication skill. It also requires that the child is able to adapt to living in two homes. Any agreement for shared custody will affect child support. | “Shared custody” is a term used by the ''Federal Child Support Guidelines''''Italic text'', but not by either the ''DA'' or the ''FLA''. Shared custody is a form of joint custody in which the child spends an almost equal time with each parent. Typically, the child would switching homes on a frequent basis, such as every few days or once a week. This usually requires that the parents live near one another and have good communication skill. It also requires that the child is able to adapt to living in two homes. Any agreement for shared custody will affect child support. | ||
==== e) Split Custody ==== | ==== e) Split Custody ==== | ||
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Under the ''FLA'', police officer enforcement clauses can only be granted when there has been a breach of an order (s 231). | Under the ''FLA'', police officer enforcement clauses can only be granted when there has been a breach of an order (s 231). | ||
A child abducted and taken elsewhere within the province will be returned to their rightful custodian. Abduction is an offence under the ''FLA'', s 188 that carries a possibility of criminal proceedings (''Criminal Code'', RSC 1985, c C-46, ss 280-281). The ''Criminal Code'' makes it an offence for a non-custodial parent to abduct a child. Where a custody order is in effect, abduction amounts to contempt of Court. | A child abducted and taken elsewhere within the province will be returned to their rightful custodian. Abduction is an offence under the ''FLA'', s 188 that carries a possibility of criminal proceedings ([http://canlii.ca/t/7vf2 ''Criminal Code'', RSC 1985, c C-46], ss 280-281). The ''Criminal Code'' makes it an offence for a non-custodial parent to abduct a child. Where a custody order is in effect, abduction amounts to contempt of Court. | ||
==== c) Parental Mobility (Under the FLA, this is referred to as Relocation which has separate considerations from that of Mobility under the DA) ==== | ==== c) Parental Mobility (Under the FLA, this is referred to as Relocation which has separate considerations from that of Mobility under the DA) ==== | ||
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Issues of parental mobility may arise in conjunction with custody issues. That is, one parent may wish to relocate away from another parent with whom they share custody. In ''Gordon v Goertz'', [1996] 5 WWR 457 (SCC), the Supreme Court of Canada set out the basic principles for the ''DA''. Once the parent applying for the change meets a threshold requirement of demonstrating a material change in the circumstances affecting the child, the Court is required to begin a fresh inquiry into what is in the best interests of the child. Factors to be considered include: the desirability of maximizing contact between the child and both parents, the disruption to the child, and the child’s views. | Issues of parental mobility may arise in conjunction with custody issues. That is, one parent may wish to relocate away from another parent with whom they share custody. In ''Gordon v Goertz'', [1996] 5 WWR 457 (SCC), the Supreme Court of Canada set out the basic principles for the ''DA''. Once the parent applying for the change meets a threshold requirement of demonstrating a material change in the circumstances affecting the child, the Court is required to begin a fresh inquiry into what is in the best interests of the child. Factors to be considered include: the desirability of maximizing contact between the child and both parents, the disruption to the child, and the child’s views. | ||
''One v One'', 2000 BCSC 1584, also a ''DA'' case, identifies the following list of factors to be considered in determining whether a proposed move is in a child’s best interests: | [http://canlii.ca/t/1fmfc ''One v One'', 2000 BCSC 1584], also a ''DA'' case, identifies the following list of factors to be considered in determining whether a proposed move is in a child’s best interests: | ||
# the parenting capabilities of and the child’s relationship with parents and their new partners; | # the parenting capabilities of and the child’s relationship with parents and their new partners; | ||
# employment, security and prospects of the parents and, where appropriate, their partners; | # employment, security and prospects of the parents and, where appropriate, their partners; | ||
